Under the regime of the 1949 Geneva Conventions and the 1977 Additional Protocols thereto, States undertook to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, grave breaches of the Geneva Conventions and Additional Protocols as defined in these instruments of international humanitarian law. More specifically, they incurred the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and to bring such persons, regardless of their nationality, before their own courts. They may also, if they prefer, hand such persons over for trial to another High Contracting Party. In addition, States agreed to take measures necessary for the suppression of all acts contrary to the provisions of the Conventions and Protocols other than grave breaches.

The decision to lay down specific rules on the penal repression of serious violations of international humanitarian law was founded on the conviction that a law which is not backed up by sanctions quickly loses its credibility. Those who drafted the Geneva Conventions and Additional Protocols felt that penal repression could best be ensured on the national level, leaving the primary responsibility of defining and setting up an appropriate system to national authorities. Nevertheless, ever since the founding of the United Nations, and especially in view of the trials that took place after the Second World War, there has been an ongoing debate on the need to create a permanent international criminal court competent to try international crimes, including serious violations of international humanitarian law.